In case of IT cartel new persons involved "emerged"

2020

B case of IT cartel new persons involved "emerged"

In the case of cartel collusion for deliveries of computers for the CEC two new persons involved appeared: the vice president of Akvarius Vladimir Piskunov and the co-owner of "Business computers of groups" Dmitry Kuvshinnikov^[1]. Two sources familiar with a situation, reported about it on July 21, 2020 to RBC.

According to data of Moscow City Court, concerning Piskunov and Kuvshinnikov criminal cases are already brought. At the same time to both measures of restraint are already appointed. Kuvshinnikov is placed under house arrest (the corresponding petition of the investigation was satisfied on July 16), to Piskunov "prohibition of certain actions" is taken out (the petition is satisfied on July 17). About what actions there is a speech, it is not specified.

According to the lawyer Piskunov of Andrey Imedashvili, concerning his client criminal case under the 178th article of the Criminal Code of the Russian Federation (competition restriction) is brought. He also told that he cannot specify what actions are prohibited his client, however noted that they will not appeal against the chosen measures of restraint.

The investigation still goes at present how many it will borrow time - it is difficult to tell, - Andrey Imedashvili concluded.

What current status of Piskunov in case, he refused to specify. The lawyer Kuvshinnikova Maria Korchagina refused comments. About the one who filed a lawsuit documents in a card of affairs on the website of Moscow City Court information is absent.

Correspondence of heads of NCC and Akvarius about cartel with suppliers of HP computers is detected in open access

Studying materials of FAS with the facts of the case about cartel collusion owing to which in July, 2020 under house arrest the president of NCC Alexander Kalinin was placed, TAdviser detected a number of the resolutions published by service in open base of documents in 2018.

Materials contain fragments of e-mails of top managers and allow to trace all chain of creation of cartel and also to estimate the benefit received by its participants as a result of this fraud^[2][3].

Investigation of FAS formed the basis of criminal case about cartel of the IT companies

What everything began with

On April 29, 2016 FULL FACE the statement of the Federal center of informatization at Central Election Commission arrived (FTsI at the CEC) about possible collusion between participants of an auction on delivery of system units for Elections state automated system.

According to the statement, FTsI allowed to participation in an auction of 6 companies: Business Computers Group LLC, AMI-NETVORK LLC, CROC Inc. Ltd, Kraftvey Corporation of PLS Ltd, PK Aquarius LLC, Superveyv Group LLC.

"Business computers of groups", AMI-NETVORK and Croc offered system units of the brand of HP ProDesk 490 G3 manufactured in the Czech Republic to delivery, "Kraftvey" offered own Kraftway Credo KC 53 system units, Aquarius offered blocks of the Aquarius Elt E50 S89 brand, Superveyv Group - Chinese to Lenovo ThinkCentre M93.

Three more companies - AiTeco, to MT (enters Merlion) and Didzhital Mashins - also submitted applications, but were not allowed.

On March 18 the auction took place, but only "Business computers of groups" and Superveyv Group participated in it, at the same time decrease in the starting maximum price of the contract was only 1%. The "Business computers of groups" which offered the price of the contract of 645.8 million rubles was recognized the winner.

In the statement FTsI at the CEC assumed that participants of an auction "signed the agreement which led to the fact that some participants, including the Russian producers of goods, refused to participate in an auction though they were assumed to it that led to the minimum reduction of price and to impossibility of use of preferences", the set Ministries of Economic Development for the Russian goods (preferences concerning the contract price in the amount of 15% are provided to procurement participants whose requests contain offers on delivery of goods from Russia and other countries of EEU).

As organizers of cartel agreed: analysis of correspondence

In case papers FAS quotes with some notes the correspondence received during the investigation from working computers of heads of the companies - participants of an auction.

For example, follows from letters that AMI-NETVORK and Business Computers Group (BCG) offering HP system units to delivery conducted joint preparation of requests. The representative of AMI writes in one of letters to the employee of BKG so:

I believe, the appearance of your specification needs to be made differing from ours, and that "dead giveaway" turns out

Follows from other e-mails that employees "A.O. Hewlett Packard" "defined the possible profit got by participants of an auction, investigated issues of possible reduction of price of the system units and a bid increment offered to delivery at the level of the distributor's input", FAS writes.

In electronic correspondence the possibility of coordination of actions of economic entities is specified during the auction by providing different selling prices of the system units offered to delivery and also reduction of the profit got by the partner in results of holding the auction, - it is told in investigation materials

For non-compliance with conditions of HP threatened with failure from supplies of equipment during the subsequent biddings.

During check in Aquarius company on the working computer of the vice president for a business activity the e-mail with a subject "on tomorrow", sent on March 17, 2016 to the president of NCC Alexander Kalinin was revealed.

According to data from the USRLE, NCC owns 99.97% in authorized capital of Aquarius, FAS reminds.

The vice president writes "about negotiations of participants of an auction on joint "mutually advantageous" participation in an auction and also on arrangements of the companies:

<...........................> , situation following:<...........................> agreed with<...........................> under the terms for himself (5% of the starting price net), but wants guarantees that the scenario will be stipulated, i.e. a victory of coalition H without casual or not casual victory of Chinese. Guarantees so far they so far such were not given. As I understand, coalition H does not understand how to them to get rid of Chinese. Pass them forward, and then to take down – the scenario not of 100%. Chinese speak about upgrade of the specification to the corresponding model upon a prize. Lenovo is ready to walk minus 3 million. And the Drugstore threatens face right after the auction (potentially another 5% net). The customer sounds planned decrease in 11%. They consider that NN should provide an input at the level 250m. And it will not provide most likely. Tomorrow they have a deadline in 11 from N. No my feeling – will not agree on all. Probably scenario 2. In 11 everything it will be clear

The president of NCC answered it:

Tomorrow is a new day

The letter "on tomorrow" requires explanations, FAS writes:

• "Coalition H" in this letter is understood as the participants of an auction who offered system units of a trademark of HP to delivery;
• Under "Chinese", Lenov in the letter Superveyv Group and the Russian representative office of firm Lenovo - EuropeAsia Lenovo (East/) means. This output is confirmed also by the amount of decrease in Superveyv Group of the starting price of the contract during the auction which made 3,261,833 rubles (i.e. "minus 3 million");
• "Drugstore", according to FAS, the author of the specified letter calls or AiTeco which was not assumed before biddings, or "Kraftvey" that Kraftvey Clinic Dental Depo" which core activity is wholesale by pharmaceutical products and also presence at the president of "Kraftvey" of shares in authorized capital of medical companies "Kraftvey Clinic", "Kraftvey Clinic of Pharm" and "Physician's Prime Minister" is explained by presence at this company of 100% of a share in authorized capital ".

According to the "winner" of the Auction described in the letter by "scenario" (arrangements) there had to be a procurement participant who is entering into so-called "coalition H", i.e. offered system units of a trademark of HP to delivery. At the same time participants of "scenario" (arrangements), proceeding from the words of the author of the letter, were all organizations allowed to participation in the Auction on what, including, points a phrase "… to all", - consider FULL FACE

On March 18, 2016 at 11:29 a.m. (in 11 minutes prior to holding the auction) the vice president for a business activity of Aquarius in the letter "RE: on tomorrow" to the president of NCC announced the reached agreements of participants of an auction:

I agreed and received confirmation of 15% dirty for two with Kraft. They finished speaking Chinese too. Decrease — two steps. From Kraft there is no confirmation yet.<...........................> wants guarantees from<...........................> Nikulin he does not accept as guarantor. Can call us Lesh too?

In a minute, in the following letter, the same vice president reported that the auction "will take away according to plan" "Business computers of groups".

Thus, draws a conclusion of FAS, the vice president for a business activity confirms the fact of the conclusion of the anti-competitive agreement, and correspondence directly testifies to the fact of failure of Akvarius from competitive behavior during the auction and also to achievement of cartel.

About existence of the predeterminated "scenario" of the behavior at an auction consisting in failure from competitive behavior, also, according to FAS, correspondence between managers of Superveyv Group and "Lenovo (Eastern Europe / Asia)" in which, in particular, the phrase is found demonstrates:

… as well as agreed upon an occasion of the CEC, it is necessary to descend the second number

Follows from the specified letter that "Lenovo (Eastern Europe / Asia)" coordinated actions of Superveyv Group by the indication of behavior model during the auction, consider FULL FACE.

Failure from participation of the Russian producers in an auction resulted 97.9 million rubles in damage

On March 18, 2016 at 11:40 a.m. the auction took place. From 6 organizations allowed to participation, price proposals were submitted only by two companies: "Business computers of groups" and Superveyv Group.

At the same time the Russian producers "Kraftvey" and "Akvarius" refused submission of price offers, thereby having guaranteed to other bidders (offering system units of a foreign origin to the delivery) impossibility of application by the customer of regulations on preferences, i.e. reductions of price offered by the winner of an auction for 15%.

In the course of holding the auction the starting (maximum) price of the contract was reduced by only 1% - from 652 million to 645.8 million rubles. "Business computers of groups" was recognized the winner of an auction.

Based on holding the auction the vice president for a business activity of Akvarius wrote to the president of NCC:

Everything came to the end according to plan. Decrease in 1% of BKG

And the owner of AMI-NETVORK sent the letter to the vice president of "Business computers of groups":

It turned out even to a krasivsha))))) the main thing Now that from you did not remove 15% as from the supplier of import... under the law should not... Russians did not participate in biddings...

Thus, draws conclusions of FAS, behavior of participants of an auction and also its results corresponded to "scenario" which was discussed by participants before its carrying out, namely:

"Business computers of groups", i.e. one of the participants who were offering system units of a trademark of HP to delivery and entering into so-called "coalition H" was recognized the winner Auktsiona;

request of Superveyv group (Lenovo; "Chinese") as it was predeterminated, took the second place ("… to descend the second number"). At the same time the only step taken by the participant during trading made 0.5%, i.e. 3,261,833 rubles ("Lenova is going to walk minus 3 million");

"Крафтвэй" and Aquarius, system units of the Russian origin which offered to delivery, refused competitive struggle, without having made any price offers.

Such behavior of bidders allowed the winner of an auction to conclude the government contract without decrease in the price for 15% offered them. Thus, according to FAS, the possible damage (the dropping-out economy of the budget because of actions of participants of cartel) to the budget of the Russian Federation was not less than 15% of the starting price of the contract or 97.9 million rubles.

The scheme of delivery of computers to the CEC allowed "subsidiary" of NCC to earn as the intermediary: purchased for 240 million, sold for 473 million

According to the correspondence received by FAS during check at office HP, originally delivery of system units to the CEC was going to be performed through AMI-NETVORK. However eventually delivery happened through the distributor of "O-SI-ES-Centre" entering into NCC according to the following scheme:

Computers were released by Hewlett-Packard Europe BV company (Amsterdam, Holland) on the production site in the Czech Republic and sold in OCS for 239.5 million rubles.

Further through a number of legal persons of the device appeared at other structure of OCS - "O-SI-ES-Sistemy" which, in turn, sold them in "Business computers of groups" already for 473.8 million rubles.

"Business computers of groups" as the winner of an auction, delivered computers in the CEC for 645.8 million rubles.

Apparently from the scheme of delivery, the difference in the purchase prices of "Business computers of groups" of HP system units and sales of the specified blocks to FTsI at the CEC made 172,013,513.70 rubles. At the same time the difference between the price of purchase of "O-SI-ES-Centre" imported on the territory of the Russian Federation of HP system units and the selling price to FTsI at the CEC made 406,354,911.35 rubles, - FAS notes. - This fact demonstrates that all bidders had an opportunity for submission of the price offer, besides, the specified fact demonstrates existence of interest of National Computer Corporation and also Aquarius in completion of an auction with the minimum decrease in the starting (maximum) price of the contract

After holding the auction the employee of the Russian office HP sent the reporting letter to the staff of the European office at which he specified that the legal department of the partner of HP prepared a certain "key argument" which led to the victory over Lenovo on a public electronic auction.

Punishment

According to Part 2 of Article 14.32 of the Administrative Code, the conclusion of the agreement, inadmissible according to the antitrust law of the Russian Federation, attracts imposing of an administrative penalty on legal entities from one tenth to one second initial costs of a subject of biddings, i.e. from 65 to 326 million rubles.

By the main responsible for the cartel agreement FULL FACE considered Aquarius. Taking into account all circumstances the decision to fine the company 163 million rubles was made. Later by the decision of Arbitration court of Moscow a penalty it was reduced twice to 81.5 million rubles then it is paid.

Croc, "Kraftvey" and Superveyv Group FULL FACE regarded mentioning in correspondence of employees as signs of participation in cartel and attempt of competitors to reach the agreement on maintenance of the price at biddings. Together with it, estimating set of the available proofs and also explanations of societies during consideration of the case, the commission noted insufficiency of proofs which could confirm the conclusion of such agreement from these companies.

Criminal continuation

In 2017 FAS made decisions concerning two more cartels. The first Aquarius cartel and Croc at tenders for needs of state budgetary institution of the city of Moscow "Information city" and for needs of Rosstat, the second - Aquarius and Superveyv Group at a Dutch auction for delivery of office and network equipment of Hewlett Packard for "Norilsk Nickel – the General service center".

Besides, in 2018 the Moscow OFAS made the decision on Aquarius, Online of Story and PROF-IT GROUP on cartel at biddings for needs of a number of goszakachik of Moscow and the Moscow region.

Courts of all instances supported solutions of antimonopoly service, and the total amount of penalties concerning all participants of these cartels exceeded 200 million rubles.

All defendants in the specified affairs paid penalties, except "Business computers of groups" - enforcement proceeding is instituted against society, specified TAdviser FULL FACE.

On the listed cartels concerning officials of the companies materials were directed to law enforcement agencies. The investigative department MINISTRY OF INTERNAL AFFAIRS Russia brings criminal case according to Part 2 of Article 178 of the Criminal Code of the Russian Federation.

The president of NCC Alexander Kalinin is sent under house arrest on criminal case about cartel

On July 14 the president of NCC Alexander Kalinin was delayed by law enforcement agencies, reported a source of TAdviser and the son Alexey Kalinin confirmed it. According to TAdviser, the day before in NCC and the companies entering into holding there took place the investigation.

The reason of searches and detentions is cartel collusion. This information of TAdviser was confirmed FULL FACE to Russia:

We were engaged in cartel of the same companies at the auction held by the CEC since 2016. They in different regions arranged to different state customers. We systematically revealed their violations, fined, reported materials to law enforcement agencies. As a rule, the companies did not reduce NMTsK or reduced it minimum, - the Head of the Anti-Cartel Department of FAS Russia Andrey Tenishev comments. - The amount of penalties on antimonopoly affairs was over 200 million rubles. Besides, to each participant of cartel fines up to 50% of NMTsK will be ordered to pay

Now criminal case is brought and suspects are delayed. It is the logical end of the cartel agreement. I hope that justice will triumph and organizers of this cartel will receive deserved, - Tenishev added

Criminal case was brought by Investigative department of the Ministry of Internal Affairs of the Russian Federation according to Part 2 of Article 178 of the Criminal Code of the Russian Federation which sounds so:

Restriction of the competition by the conclusion between the managing rival subjects of the agreement (cartel) prohibited according to the antitrust law of the Russian Federation limiting the competition if this act caused major damage to citizens, to the organizations or the state or entailed commercialization in a large size.

Part 2 specifies:

Same acts:

a) made by the person using the official position; b) integrated to destruction or damage of someone else's property or to threat of its destruction or damage, in the absence of signs of racketing; c) caused especially major damage or entailed commercialization in especially large size.

The maximum punishment under this article is imprisonment for a period of up to six years.

On July 16 Tverskoy Court of Moscow sent Alexander Kalinin under house arrest, his son Alexey reported TAdviser.

2017-2018: FAS completed investigation and fined guilty persons

In 2017-2018 FAS recognized Aquarius, NCC, "Business computers of groups" and AMI-NETVORK guilty of creation of cartel on open auction on delivery of system units for complexes of the automation equipment of regional fragments of Elections state automated system. Courts of all instances supported the FAS decision.

The largest penalty was imposed on Aquarius. Originally it made 163 million rubles, but then was reduced by the decision of Arbitration court of Moscow twice to 81.5 million rubles.

2016

Croc does not let the staff of FAS to the office. Administrative cases for counteraction to investigation are initiated

On December 30, 2016 FAS announced excitation of four administrative cases in the relation Croc and her employees for counteraction to antimonopoly legal investigation of deliveries of computers and the software for the state needs^[4]. In particular, they tried not to allow inspection of FAS on the territory and to company premises. Anti-monopolists could get on the checked object only after arrival of police officers. Two affairs on administrative offense were vozbudzhena about it.

Besides, the company delays providing the requested documents (information) at the scheduled time or provides information in incomplete volume, told FULL FACE. With respect thereto two more administrative cases were initiated.

FAS disclosed details of case of cartel: Kraftway and Aquarius refused fight for the mega-tender of the CEC for benefit of HP

On November 23, 2016 the Federal Antimonopoly Service (FAS) announced that initiated proceedings against a number of suppliers of the computer equipment on signs of violation of item 2 of Part 1 of Article 11 of the law on protection of the competition (article about prohibition on the agreements of economic entities limiting the competition). Proceedings, in particular, are initiated in the relation "Business computers of groups", AMI-Netvork, Croc, Superveyv Group, Kraftway and Aquarius.

The companies are suspected of the conclusion of the anti-competitive agreement with participation in the tender for delivery of system units for regional fragments of Elections state automated system which carried out the Federal center of informatization at the Central Election Commission of the Russian Federation, speak FULL FACE. Purchase was carried out in March, 2016. Its starting price was about 652 million rubles.

Several days before FAS carried out inspections at the Russian offices HP and Lenovo

Inspections are carried out according to the statement of the Federal center of informatization at the Central Election Commission of the Russian Federation. FAS notes that during the auction from six organizations allowed to participation in biddings, price proposals were submitted only by two companies - "Business Computers Group" and Superveyv Group which reduced the maximum price of the contract for only 1%. At the same time the Russian producers Kraftway and Aquarius refused submission of price offers despite the preferences which are available for them as for suppliers of the Russian equipment, anti-monopolists say.

The analysis of the electronic correspondence received during unscheduled inspections of the organizations and also other documents and information allowed us to come to a conclusion about existence of signs of the conclusion of an agreement directed to maintenance of the price of the contract, - the head of department of FAS on fight against cartels Andrey Tenishev says. - The special attention of antimonopoly department was caused by failure of domestic manufacturers from competitive struggle while they could expect preferences from the customer.

FULL FACE emphasized that this case – first initiated within investigation of cartel collusion at biddings on deliveries of the equipment for the state needs which acts on the territory of Russia several years. In the nearest future initiation of res antimonopoly novas concerning other participants of potential cartel is possible, added FULL FACE.

The participating companies of case did not comment on TAdviser a situation at the time of the publication of material.

FAS began large anticartel investigation

On November 17, 2016 the Head of the Anti-Cartel Department of the Federal Antimonopoly Service (FAS) Andrey Tenishev reported that department carries out an inspection at the Moscow office of Lenovo company in connection with large anticartel investigation concerning state procurements of computers.

An inspection of Lenovo is carried out on suspicion of participation of the company of large cartel at biddings on deliveries of the equipment for state needs which operates on the territory of Russia several years, - specified TAdviser in the press service of department. - Lenovo interferes with conducting check, and at present concerning the company and its representatives three protocols on hindrance to check are made.

The Russian office Lenovo told TAdviser what at their office FAS does not state the specific reason of check. The staff of antimonopoly service requires to copy information from computers of staff of the company without explanation.

We are ready to provide any specific information, but we do not know what, - the vice president of Lenovo for Eastern Europe Gleb Mishin says. - Of course, we would not like that all information from computers of our employees got to the press, as well as the message about the check fact.

Mishin added that, meanwhile, the policy of Lenovo consists in comprehensive cooperation with the controlling and regulating authorities of the power within the legal framework.

Within this case inspections and other large foreign and large Russian companies are carried out. FULL FACE told TAdviser that in total their service will check more than 10 companies, without specifying what.

The source of TAdviser familiar with a situation says that an inspection, for example, is carried out also at the Russian office HP. In this occasion it was not succeeded to receive from the representative of HP of comments. FULL FACE information on check in HP was not denied, but so far department is ready to speak officially only about Lenovo: "On the others we will be able to tell upon completion of all checks", told TAdviser in antimonopoly service.

The source of TAdviser familiar with parts of check of FAS says that the tender for supply of equipment of Russian Central Election Commission (the Central Election Commission of the Russian Federation) in 2016 became a trigger for it. With the equipment of Lenovo the application for participation in it was submitted by the partner.

The tender for purchase of computers for Elections state automated system took place

In March, 2016 the Federal center of informatization of the Central Election Commission of the Russian Federation announced^[5] on delivery of system units for regional fragments of Elections state automated system. The starting price of purchase was about 652 million rubles. The customer needed to deliver 7891 system units of two types.

According to the results of an auction the Federal center of informatization of the Central Election Commission of the Russian Federation signed the delivery contract with Business Computers Group company of 645.8 million rubles which suggested to deliver HP computers. At biddings it was competed by Superveyv Group with computers of Lenovo. In addition to them bids were submitted by companies "AMI-Netvork", "Croc", Kraftway and Aquarius, but any of them did not begin to offer reduction of price.

Notes